While I intended Part Two of the “White Like Me” series to be a review of my personal history in matters of race and to thereby give context for my opinions, that review has been time-consuming and more difficult to express than I had anticipated. Meanwhile the tragedy of Breonna Taylor has become a timely and compelling subject for CLB commentary.
Breonna Taylor was a young Black woman trained as an EMT and working as an ER tech in two Louisville hospitals when shot to death by Louisville police in her own apartment during the midnight hour of March 13, 2020. This year is notable for the multiple instances of harm to Black males during police encounters prompted by their criminal behavior. In contrast, Breonna Taylor was breaking no laws while in bed (with boyfriend Kenneth Walker) in her own apartment when Louisville police arrived to execute a “no-knock” search warrant. A “no-knock” search warrant dispenses with the “knock-and-announce” requirement of a typical warrant. Case law holds that “exigent circumstances” supported by an affidavit or live, sworn testimony may justify the issuance of a “no-knock” search warrant.
For purposes of this Article I accept some allegations of relevant circumstances. The first is that Louisville police did “announce” themselves at the door but not loudly enough or long enough to be heard and understood by sleeping or nearly sleeping occupants. The second is that Kenneth Walker had no comprehension that the men breaking in were police officers when he armed himself and fired his “warning shot.” The police involved were not in uniform, whether or not there was sufficient light within the apartment to identify a police uniform. From among the contested factual circumstances it makes no difference to me or to this CLB analysis whether Kenneth Walker’s “warning” shot or “friendly fire” (from another officer) caused the serious thigh wound to Sgt. Mattingly.
Also for purposes of this Article I have the observation that Detective Cosgrove, Sgt. Mattingly, and Detective Hankison had no intent to conduct the search in a civilized manner. Not one was in uniform. They arrived in darkness near 1:00 a.m. They had their battering ram at the ready, as though they expected the occasion for its use. Although body cams were available, they did not utilize them. Moreover, the initial police reports denying forcible entry and denying injury to any civilian were demonstrable lies suggestive of cover-up. Regardless of what happened, Louisville police are not a trustworthy source of information.
Consider the Second Amendment and self-defense statutes authorizing the defense of one’s home against persons breaking into it. A “no-knock” warrant is fairly described as a death warrant, either for the police executing it or the people inside the home in the middle of the night when police break in like violent criminals are wont to do. “No-knock” warrants should be legal only upon an evidentiary showing that human life hangs in the balance. The proclivity of some persons to flush a bag of contraband down the toilet while police politely wait for the front door to open is not grounds for a death warrant.
I have studied the Breonna Taylor Search Warrant and Affidavit for Search Warrant as posted online. The Search Warrant does not include the term “no-knock” or “knock and announce.” Presumptively, a search warrant is of the latter type. However, the Search Warrant seems to incorporate the Affidavit which ends with:
“15.) Affiant is requesting a No-Knock entry to the premises due to the nature of how these drug traffickers operate. These drug traffickers have a history of attempting to destroy evidence, have cameras on the location that compromise Detectives once an approach to the dwelling is made, and have history of fleeing from law enforcement.”
While I see absolutely no “no-knock” authorization in the Search Warrant it may be the case in Kentucky that a “no-knock” request in the Affidavit is enough. For instance, a “Fact Check” account from the Louisville Courier Journal of June 16, 2020 updated September 24, 2020 describes the warrant as being “no-knock” according to “court records.”
The Judge who approved the “no-knock” Search Warrant is Jefferson Circuit Judge Mary Shaw. It is the position of the CLB that Judge Shaw okayed the “no-knock” death warrant on insufficient grounds and thus orchestrated the consequent exchange of gunfire that wounded Sgt. Mattingly and killed Breonna Taylor. If I had somehow done that which Judge Shaw did, I would have apologized, publicly and privately, while resigning from the bench. I have heard no public apology. I have seen no resignation.
Apart from the impropriety of the “no-knock” aspect of the search warrant, the position of the CLB is that no warrant at all should have issued for the search of Breonna’s apartment. Notably, the 15-paragraph Affidavit was in support of five warrants. Par. 8 asserts that Jamarcus Glover was seen on January 16, 2020 exiting Breonna’s apartment with a “suspected USPS package” in hand. Par. 9 asserts some history (with no offering of dates) of Jamarcus receiving mailed packages at Breonna’s apartment. Par. 10 alleges that Breonna’s Chevrolet Impala was seen at the Glover residence “on different occasions” (again with no offering of dates). The Affidavit was made March 12, 2020, at which time the allegation for January 16, 2020 was stale in addition to being less than incriminatory. The par. 9 and par. 10 allegations of other package deliveries and of Breonna’s car being seen at the Glover residence are defective as proffered probable cause because the absence of dates leaves the reviewing judge uninformed as to the currency of the information. An example of the “staleness” rule from Indiana case law may be found in State v. Haines, 774 N.E.2d 984 (Ind. Ct. App. 2002).
For Hoosiers the standard break-in authority of police executing a search warrant is expressed at IC 35-33-5-7:
“(d) A law enforcement officer may break open any outer or inner door or window in order to execute a search warrant, if the officer is not admitted following an announcement of the officer’s authority and purpose.”
This clear suggestion that police should knock and announce in advance of the battering ram has not deterred the judiciary from approving “no-knock” warrants upon allegation (by police) of supposed “exigent circumstances.” Moreover, our (Hoosier) judiciary will often tolerate a “no-knock” execution of a warrant of the “knock and announce” variety. See, for instance, Wilkins v. State, 946 N.E.2d 1144 (Ind. 2011). The CLB calls upon the Indiana General Assembly to prohibit issuance of a “no-knock” warrant without clear and convincing evidence that human life is at stake.
I do not classify Breonna Taylor’s tragic death as a Black victim/White cop issue. When police return fire (after breaking into the apartment) down a dark hallway, there is likely no consideration of race. While Breonna seems to have been a pleasant and productive young woman, the circumstances leading to her death included her very bad choices of male friends.
Breonna’s former boyfriend Jamarcus Glover, a known drug dealer according to police, was the central figure of the allegations (from the Affidavit for Search Warrant) supporting the search warrant for Breonna’s apartment. Although Jamarcus was an “ex,” Breonna allegedly still maintained contact with him. Then there was the new boyfriend Kenneth Walker. Some might blame Kenneth for approaching a break-in while armed. I am not among those. Kenneth was within his rights to fire the first shot, but only if he had the will to fire the second, third, and fourth shots and so on until the threat was eliminated. Instead, Kenneth provoked return fire and then somehow hopped outside the field of fire without taking Breonna. Kenneth was no hero. If Kenneth entered the apartment hallway to deal with a violent break-in, he had no cause to allow Breonna to stand beside him.
The tragic death of Breonna Taylor is cause for reflection, changes in police policy, scrutiny of the judiciary, and possible legislative amendments. Her passing is not the occasion for more violence.
Leave a Reply